West Virginia v. EPA declared: The Supreme Court is dealing with the greenhouse gas case

experts say West Virginia vs. EPA is a highly unusual case as there is no current EPA regulation on power plant emissions. Plaintiffs are asking the court to prevent EPA from implementing future rules.

“All of this feels pretty unprecedented,” Jody Freeman, a Harvard Law School professor and former Obama administration official, told CNN.

Here’s what you need to know about the case and its possible outcomes.

Who filed the lawsuit and what do they want?

West Virginia Attorney General Patrick Morrisey is the lead plaintiff in the case, along with Republican attorney generals from more than a dozen other states. Morrisey’s office also represents two coal companies: The North American Coal Corporation and Westmoreland Mining Holdings, LLC.

The plaintiffs are challenging the EPA’s authority to regulate greenhouse gas emissions from power plants, saying that authority should be removed from the agency and given to Congress.

“I think there’s really a fundamental question here of who decides the big issues of the day,” Morrisey said at a media event earlier this month. “Shouldn’t it be elected bureaucrats, or should it be the people’s representatives in Congress? That’s what this case is about.”

US power plants have historically generated electricity by burning coal; However, the use of coal has been declining as renewable energy and natural gas have increased in the power sector.
West Virginia and several other plaintiff states are also coal mining states.

What do the accused say?

The US Attorney General represents the Biden administration and the EPA. Several environmental groups, Democratic lawmakers, energy companies and their trade associations have filed amicus briefs in support of the defendants.

The Biden administration says the case should be dismissed, in large part because there is no federal power plant regulation currently on the books. The Obama-era Clean Power Plan is long dead, as is the Trump-era Affordable Clean Energy rule that replaced it.
President Joe Biden’s EPA has yet to issue its own rule to regulate greenhouse gas emissions from power plants and is expected to do so after hearings on Feb. 28.

“Usually courts review the actual rules, and there are currently no rules to review,” Ricky Revesz, a New York University law professor and environmental law expert, told CNN. “Whatever the court does involves speculation, and courts usually – they emphasize this – do not give opinions. That’s not what courts do.”

Who else is involved?

In an interesting twist, some energy companies are siding with the EPA and will have the opportunity to argue their case directly during hearings.

The power sector is very nervous about the impact of the removal of the EPA regulator. In its amicus letter, the industry’s powerful trade group, the Edison Electric Institute, said stripping the EPA of its authority would be “chaos” for its companies and subject them to constant litigation.

“Rather than EPA using its world of expert authority to make regulations, our members would be thrown into a world of tort and nuisance lawsuits,” Alex Bond, EEI’s assistant general counsel for climate and clean energy, told CNN. “This is a world of enormous risk and uncertainty.”

Legal experts and environmental groups are watching to see if this argument from the energy industry could resonate with conservative judges.

“I think the court is looking at deals,” Freeman said. “It is striking that the industry that is to be regulated is not the petitioner.”

What is the argument?

The things being argued before the Supreme Court are pretty broad.

Morrisey and other plaintiffs say the Clean Air Act doesn’t specifically say the EPA can regulate greenhouse gas emissions from power plants. But rather than asking for limits on the EPA’s authority, they are asking the Supreme Court to invoke two legal theories that would give Congress the power to make decisions regulating power plant emissions instead of agencies.

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“These federal agencies are unable to act on their own without a clear statement from Congress,” Morrisey said at the media event. “If you have something important, you have to make sure that Congress steps in and that Congress can make those important decisions of the day.”

But legal experts say Congress has already used its sweeping powers of delegation with the Clean Air Act, which has been reaffirmed by the Supreme Court itself. In two separate judgments — one unanimous — the Supreme Court found that the EPA has the authority to regulate greenhouse gas emissions (Massachusetts v. EPA and American Electric Power Co. v. Connecticut).

Additionally, delegating that power to an already slow-moving branch of government could pose an obvious logistical challenge.

“On the surface, it sounds like a reasonable statement: Congress should speak clearly,” Freeman said. “But in the past, in practice, we have understood ‘broad delegation’ as just that – broad delegation” to the agencies to make decisions.

What is the range of results?

The conservative supermajority makes the outcome of this case difficult to predict, but there are a few possibilities.

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case rejection: In its brief, the US Solicitor General’s Office asks the Supreme Court to dismiss the case, stating that the Republican Attorneys General and the coal companies have no capacity to act because there is no EPA rule currently in effect.

Administrative attorneys are also suggesting the court could reverse and annul the January 2021 DC Circuit Court ruling that spurred West Virginia’s challenge. Indeed, this could wipe the slate clean and allow Biden’s EPA to proceed with its own power plant rules.

An arrow Verdict: The court could issue a narrower ruling that would allow the EPA to retain its regulatory powers, but says the agency can only issue rulings that affect energy companies “inside the fence.” This would limit the EPA to stricter regulations that power plants could achieve within their own fence lines — like carbon capture — rather than pushing them to add cleaner energy sources.

EPA worst case scenario: The court could Massachusetts v. Repeal EPA and give Congress powers to regulate greenhouse gas emissions from power plants.

Are there judges to watch?

Most of the action will take place on the court’s conservative bench.

Defendants, plaintiffs and outside experts say they will be watching the court’s newest judges: Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch. Barrett is a little unknown when it comes to environmental laws, experts told CNN.

“I think anyone can bet she’s rather skeptical about the authority of broad agency,” Freeman said.

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